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Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition

The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants’ restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:

A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Contrary to the defendants’ contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina’s Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14

 

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THE DOCTRINE OF THE LAW OF THE CASE PRECLUDED CONSIDERATION OF WHETHER THE BANK COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304; THE ISSUE HAD BEEN DETERMINED IN THE BANK’S FAVOR AT THE SUMMARY JUDGMENT STAGE AND SHOULD NOT HAVE BEEN RECONSIDERED, SUA SPONTE, WHEN THE BANK MOVED FOR A JUDGMENT OF FORECLOSURE (SECOND DEPT).
FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.
BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT).
QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION.
THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).
ALTHOUGH PLAINTIFF’S COUNSEL SENT A LETTER TO THE INSURED SHORTLY AFTER PLAINTIFF WAS INJURED IN THE INSURED’S HOME REQUESTING THAT THE INSURED NOTIFY HER INSURER, THE INSURER WAS NOT NOTIFIED UNTIL IT RECEIVED THE SUMMONS AND COMPLAINT SIX MONTHS AFTER THE INCIDENT; THE INSURER PROPERLY DISCLAIMED COVERAGE ON THE GROUND IT HAD NOT BEEN TIMELY NOTIFIED (SECOND DEPT).
Statute of Frauds Precluded Recovery for Both Contract and Quantum Meruit Causes of Action

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